Click v. Seale

• Decision Date: 19 February 1975
• Docket Number: No. 12231,12231
• Citation: 519 S.W.2d 913
• Parties: Robbie Seale CLICK, Appellant, v. R. H. SEALE, Appellee.
• Court: Texas Court of Appeals

Page 913

519 S.W.2d 913

Robbie Seale CLICK, Appellant, v. R. H. SEALE, Appellee.

No. 12231.

Court of Civil Appeals of Texas Austin.

Feb. 19, 1975.

Rehearing Denied March 19, 1975.

Terrence Kendall, Kendall, Randle, Finch & Osborn, Austin, for appellant.

Barry K. Bishop, Clark, Thomas, Denius, Winters & Shapiro, Austin, for appellee.

O'QUINN, Justice.

R. H. Seale, the appellee, brought this suit in March of 1973 to compel specific performance by Robbie Seale Click, the appellant, under two option agreements, made in July of 1962, by which Seale seeks to purchase two tracts of land, located in Robertson and Callahan Counties and owned by appellant.

At the time the agreements were entered into in 1962 appellant was the wife of Dr. L. L. Click, who later died in November of 1967. Both tracts of land were the separate property of Mrs. Click, and she was joined by her husband Pro forma in both written option agreements.

The original agreements were made with Frank B. Seale, Mrs. Click's brother, who died in December of 1964, and this suit was brought by Seale's son as assignee from his mother and his two sisters of the two Click options.

In district court Mrs. Click answered Seale's suit and pleaded that at the time of the agreements, and thereafter until her husband's death more than five years later, she was an unemancipated married woman whose disabilities of coverture had not been removed, and who had not elected in any manner to have sole management of her separate estate; and that the option agreements were executory promises involving lands of her separate estate, which were unenforceable when made and also at the time of demand for performance by Seale in 1972, at the end of a ten-year period specified in the option agreements.

Mrs. Click also filed a cross action in which she again pleaded her unemancipated coverture at the time the agreements were entered into, and asserted that during the life of her husband, and shortly after her brother's death late in 1964, she advised Frank B. Seale's widow and the son, who were executors of Seale's estate, that she was rescinding the option agreements and would not perform the promise to sell the two tracts of land. Mrs. Click also sought damages by her cross action for wrongful detention and use of her lands by appellee after termination of the leasehold interests granted in 1962 simultaneously with the making of the option contracts.

After suit was filed, certain depositions were taken and the parties entered into stipulations of various facts. Both parties filed motions for summary judgment and filed affidavits in support of the motions. Hearing before the trial court in May of 1974 resulted in judgment, entered July 3, 1974, denying Mrs. Click's motion for summary judgment and granting Seale's motion, with a decree that Seale have specific performance upon payment of the option price contained in the option agreements.

Appellant brings two points of error, being in brief that: (1) it was error to deny appellant's motion for summary judgment because the uncontroverted facts establish the two options to be executory contracts relating to the separate property of a married woman entered into while under disabilities of coverture which are unenforceable against her; and (2) it was error to grant appellee's motion for summary judgment decreeing specific performance of the covenants to convey.

We will sustain the points of error and reverse judgment of the trial court. We will render judgment that appellee take nothing by his suit. We will remand the cause for trial in conformity with this opinion on the issue only of appellant's cross action for damages.

The two written instruments under consideration are identical except as to description of the lands and the sums of money mentioned. Both writings are dated July 6, 1962. One instrument pertained to 5,420 acres of land in Callahan County, the other to 605.24 acres in Robertson County. Each tract was leased to Frank B. Seale for a term of ten years at an annual rent of $2 per acre. The leases were for a term of ten years, ending in 1972.

The agreements as to the option to buy each tract were expressed, in part, in this language:

'In consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable consideration paid the Lessors, the receipt and sufficiency of which is (sic) hereby acknowledged, Lessors hereby grant unto Lessee an irrevocable option to purchase said property after the term of ten (10) years has expired and on or before the expiration of six (6) months thereafter, at the price . . .' stated in specified sums, '. . . to be paid to Lessors by Lessee in cash.'

The parties have joined issue on whether the writing, which contained both the lease agreement and the option agreement, was a contractual instrument that was 'severable,' or one that was 'entire' or 'indivisible.' Allied closely is the issue as to whether the option agreement was executory and not a present conveyance of a part of the title, or was an instrument constituting an 'encumbrance or conveyance' and therefore not executory, but a present grant of interest in the lands.

At the time the contracts were entered into Mrs. Click was married to L. L. Click and remained his wife until Dr. Click's death in November of 1967. It is stipulated that at no time did Mrs. Click elect to manage her separate property pursuant to Article 4614(d), Vernon's Anno.Civ.Sts., and the disabilities of her coverture were never removed except by her husband's death. It is stipulated that both tracts of land were the separate property of Mrs. Click.

Mrs. Click's position is that under statutes existing in 1962 when the contracts were made the option agreement could not be binding on her if she chose to repudiate the contract and refuse to perform under it.

Under the statutory law Mrs. Click invokes it was settled that the courts were without power to require of a married woman specific performance of an executory contract to convey, either the homestead or the wife's separate property, when the wife refused to convey in accordance with the contract. In Jones v. Goff, 63 Tex. 248 (1885) the court said that '. . . in the sale and conveyance of the homestead, up to the very last moment Before the privy examination is concluded and the title passes, the married woman may absolutely defeat the conveyance by Declaring her wish to retract all that had been done by her in the matter.' (Emphasis added) (63 Tex. 255). The court pointed out that the statute made no provisions for the wife to enter into 'agreements or executory contracts' to convey the homestead in the future, and that such an agreement was not one of the modes provided by statute by which a married woman could divest herself of the homestead right.

The rule in Jones v. Goff, in which homestead property was involved, was applied by the Supreme Court to the wife's separate property in Blakely v. Kanaman, 107 Tex. 206, 175 S.W. 674 (1915). In that case the married woman pleaded coverture in a suit for specific performance in reliance on Article 1114, R.S. 1911, a statute repeated without change as Article 1299 in the Revised Civil Statutes of 1925 and not repealed until 1963, more than a year after the making of the contracts with which we are concerned. (Repealed by Act 1963, 58th Leg., p. 1189, ch. 473, sec. 1, eff. August 23, 1963.)

In Blakely v. Kanaman the court said that such power as was possessed by a married woman with respect to her separate property was that conferred by the statute. The statute at that time, and until repealed in 1963, provided:

'The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband before some officer authorized by law to take acknowledgments to deeds for the purpose of being recorded, and certified to in the mode pointed out in articles 6605 and 6608 (6802 and 6805, in R.S. 1911).'

The basis for the decision in Blakely v. Kanaman is explicit in the language of the Supreme Court:

'This statute empowers her To convey such property when joined by her husband and her acknowledgment is privily taken, but it Recognizes no obligation resting upon her in virtue of a mere contract to convey. Unless it can be properly held that the power to convey imports the authority To contract to convey, this contract was not enforceable against Mrs. Kanaman. This, in our opinion, is a matter of legislation, and not of judicial construction; for neither this statute nor any other in force at the time with which we are dealing in any wise purported to invest a married woman with authority To contract to convey her separate real estate, or to make such a contract binding upon her. Such has been the uniform rule of decision in this court.' (Emphasis added)

Again, in Pickens v. Bacle, 129 Tex. 610, 104 S.W.2d 482 (1937), the rule was followed, the court speaking of an option to convey as 'not a present conveyance' but as 'nothing more than a part of the contract to convey when the option was exercised.' The court repeated the rule: 'It has been many times held that a married woman cannot make any contract with reference to her homestead or her separate estate Which is not a present conveyance of the whole or a part of her title.' (Emphasis added) (104 S.W.2d 485)

Seale recognizes the rule, found in Jones v. Goff and the decisions that followed, that 'a wife could not be bound to a contract to dispose of her separate property' if the contract 'was not a present conveyance of the whole or part of her title.' (Appellee's emphasis) Seale then argues that the writing in this case was not divisible but that 'the instruments in question here plainly intended to grant, In praesenti, both a leasehold interest and an option to the leasehold remainder.' Seale insists, 'It is incorrect to describe the option...